The Queen and Others v Bow County Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,MR JUSTICE PENRY-DAVEY |
| Judgment Date | 19 October 2000 |
| Judgment citation (vLex) | [2000] EWHC J1019-11 |
| Docket Number | CO/4774/1999 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 October 2000 |
[2000] EWHC J1019-11
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London WC2
Lord Justice Buxton
Mr Justice Penry-Davey
CO/4774/1999
The applicant appeared in person
MESSRS P SALES & A CHOUDHURY (instructed by Treasury Solicitors, Queen Anne's Chambers, 28 Broadway, London, SW1H 9JS) appeared on behalf of the respondent
In these proceedings for judicial review the applicant, Dr Pelling, principally seeks to have declared ultra vires certain rules in the Civil Procedure Rules and certain parts of the Practice Directions issued under those rules. Dr Pelling's attention was drawn to the matters of which he complains by certain practices at the Bow County Court, but it is important to note that the relief that he seeks in these proceedings is directed at the generality of the rules and practice directions underlying those practices and not, save in one respect, which I shall come at the end of this judgment, at the practices at that court themselves.
There are a number of preliminary matters that I must deal with before I come to the substance of the case:
(1) The case was estimated to last for one day. That was an estimate that even if not made by Dr Pelling, he concurred in to the extent of recording it at the beginning of his skeleton argument, and the case was accordingly listed and other cases today equally listed on that assumption. The case was listed to come on at 12 noon yesterday and was called on at that hour. Dr Pelling had not then arrived in court, owing to transport difficulties which he properly explained to us later, but was able to commence his submissions at 12.30. At 4.15 yesterday we told him that the court would sit today at 10 o'clock but that he must conclude his oral submissions by 11.30; that is to say, allowing him over four hours of court time to address us. Dr Pelling indicated that that would cause him difficulty. However, we bore in mind not only the time allocation that we had already indicated, but also that we had received and carefully read extensive written submissions from Dr Pelling, including a 20-page submission on the implications of the European Convention on Human Rights, a matter that he indicated would need to be dealt with extensively. We were also conscious, as we always are, of our duty to manage the time of the court in the interests of all litigants, including those litigants who, on the basis of the original time estimate, are now in court waiting for their cases to be heard. We were satisfied that we could do justice to Dr Pelling's case and to his arguments within the time limited to oral argument as we have described. In the event, Dr Pelling was able to conclude his address to us shortly before 11.30 and was good enough to say that that time had been sufficient to him; though I would not want that to be read as any more than a courteous observation to the court, rather than any waiver or withdrawal on his part of the submissions that he had made on the previous day.
(2) Dr Pelling submitted at the outset of the hearing that he would be handicapped in the presentation of his case by being required to sit in that part of the seats in the court which are usually allocated to litigants in person. He drew our attention to a substantial written submission that he had previously made indicating the particular difficulty that he would encounter. He asked to be permitted to move elsewhere. We agreed to that adjustment of Dr Pelling's position in the court in the light of the particular difficulties that he had outlined. We made it clear to him, and repeat, that we were establishing no general approach on the part of the court. Our decision is limited to this constitution hearing this case.
(3) In his original Form 86A Dr Pelling had sought to challenge an extensive part of the Civil Procedure Rules and the Practice Directions. In order to explain this point, and for reference purposes later on in this judgment, it is necessary to set out the relief that he sought, explaining as we do so what the content is of the provisions to which he takes objection. The relief sought was:
"1. A declaration that Civil Procedure Rules 1998 Rules 39.2(3)(c) and 39.2(3)(d) and 39.2(4) are ultra vires."
Rule 39.2(3) reads as follows:
"A hearing, or any part of it, may be in private if…
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or patient."
The second relief sought was:
"2. Declaration that CPR 1998 Practice Direction 39PD " Miscellaneous Provisions Relating to Hearings" paragraphs 1.5, 1.6, & 1.7 are ultra vires."
Those paragraphs are as follows:
"1.5. The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3)(c), namely…",
and a number of those are set out including:
"(2) a claim by a landlord against one or more tenants or former tenants for the repossession of a dwelling house based on the non-payment of rent;
(3) an application to suspend a warrant of execution or a warrant of possession or to stay execution where the court is being invited to consider the ability of a party to make payments to another party."
Eleven types of action are listed as being governed by Practice Direction 1.5, including that which I have just read out. Paragraph 1.6:
"Rule 39.2(3)(d) states that a hearing may be in private where it involves the interests of a child or patient. This includes the approval of a compromise or settlement on behalf of a child or patient or an application for a payment of money out of court to such a person."
1.7:
"Attention is drawn to paragraph 5.1 of the practice direction which supplements Part 27 (relating to the hearing of claims in the small claims track), which provides that the judge may decide to hold a small claim hearing in private if the parties agree or if a ground mentioned in rule 39.2(3) applies. A hearing of a small claim in premises other than the court will not be a hearing in public."
The third relief sought is in the following terms:
"Declaration that CPR 1998 Practice Direction 27PD "Small Claims Track" paragraph 4.1(2) is ultra vires."
Having said in paragraph 4.1(1) that the general rule is that a small claim hearing will be in public, paragraph 4.1(2) continues:
"The judge may decide to hold it in private if -
(a) the parties agree, or;
(b) a ground mentioned in rule 39.2(3) applies."
The fourth ground of relief claimed is:
"Mandemus requiring Bow County Court to hold all civil trials in open court without concealment identities of parties/witnesses, unless authorised otherwise at Common Law or by enactment, and without impeding the access of the public to the hearings."
Dr Pelling was refused permission to pursue this application by the single judge originally but was granted permission by the Court of Appeal on a renewed application. He was however only granted that permission in respect of a limited number of matters, which, to quote from the order of the court, were as follows:
"(i) the question of whether statute gave power to the rule makers to provide that hearings may be in private in the circumstances described in Part 39.2(3)(c)
(ii) the question of whether the rules if they were ultra vires gave power to issue the particular practice direction relating to possession proceedings commencing in private 39PD 1.5(2)
(iii) what the practice should be as regards possession hearings should also be established so that there is not a different practice in one court rather than another
(iv) whether small claims being tried in the chambers of a district judge with access only through a locked door with the assistance of a member of the Court staff is a hearing in public."
Dr Pelling applied to us to extend that permission so that he can argue all of his grounds. In his skeleton argument, Mr Philip Sales, on behalf of the county court, which is the titular respondent to this application, said that we were bound by the decision of the Court of Appeal in respect of the extent of these proceedings. As at present advised, I am not certain that that contention was correct. When it granted this permission, the Court of Appeal was acting under the provisions of order 59 rule 14(3). It was not hearing an appeal from the original judge, but was arguably acting as a second original tribunal. In making that point, I have not overlooked the judgment of Lord Hoffman in the case of Kemper [1998] 3 WLR page 641 G, nor the adoption of Lord Hoffman's remarks by the Court of Appeal in the case of Adan. It seems to us, however, at least arguable that despite the process under order 59 rule 14(3) being there described as an appeal, the substance of the decision stands on the same level with regard to this court as would the decision of any permission granting judge.
However, we concluded that even if we did have vires to consider, and if need be grant, this extension, we should not do so. The Court of Appeal's basis, as stated in its judgment, for limiting Dr Pelling's case was that he should limit his application to "the circumstances with which he was concerned." In so saying, the Court of Appeal may or may not have had in mind the formal locus point, and Dr Pelling argued before us that under the present rules of standing, at least so far as what I would call domestic applications are concerned, he...
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